Richard Denison, Ph.D., is a Lead Senior Scientist.
The Environmental Protection Agency (EPA) is in the process of making some major changes to its policies and practices governing new chemical reviews. This post discusses one of the most troubling ones. [pullquote]The SNUR-only approach EPA is now deploying differs dramatically from and provides far less risk protection than would result from it simply doing what the law requires: using orders, with SNURs as backup.[/pullquote]
As I have previously described, last year’s Lautenberg Act made extensive changes to section 5 of the Toxic Substances Control Act (TSCA), which governs the review of new chemicals prior to their manufacture and use. Among these changes is a requirement that EPA must evaluate potential risks, and mitigate potential unreasonable risks, of a new chemical under its “conditions of use,” which the new law defines to include “reasonably foreseen” circumstances of production, processing, distribution, use or disposal, as well as those intended by the company submitting notice of the new chemical to EPA. If EPA identifies potential risk or significant exposure or lacks sufficient information on a new chemical, it must issue an order prohibiting or limiting the conditions of use of the chemical in order to mitigate any unreasonable risk.
After passage of the Lautenberg Act until recently, and in keeping with the new law, if EPA’s review identified risk concerns relating to conditions of use beyond those strictly identified by a company submitting a new chemical notice to EPA, the agency made a “may present an unreasonable risk” finding and pursued development of a consent order with the company sufficient to ameliorate those concerns. (While EPA has authority to issue unilateral orders, it typically negotiates with the company to arrive at a consent order that both parties sign.)
Now EPA is indicating it will instead make a “not likely to present an unreasonable risk” finding for the intended conditions of use, and says it can address any concerns over reasonably foreseen uses without issuing an order by developing only a significant new use rule (SNUR). This “SNUR-only approach” is inconsistent with the law, a matter I won’t discuss further here. However, it also raises a host of policy concerns, some of which I lay out in this post.
The SNUR-only approach EPA is now deploying differs dramatically from and provides far less risk protection than would result from it simply doing what the law requires: using orders, with SNURs as backup.
There are ample reasons why Congress called on EPA to use orders to address concerns and then use SNURs as backup: Orders (including consent orders) and SNURs are not created equal. This post discusses 12 key differences, with respect to:
- legal requirements available in a consent order vs. a SNUR;
- the scope of risk review under a consent order vs. a SNUR;
- the requirements for issuing a consent order vs. promulgating a SNUR; and
- the incentives and disincentives companies face under a consent order vs. a SNUR
(Spoiler alert: Deep dive ahead. Let me apologize to and warn readers in advance that this post gets rather into the weeds, as the issues are complicated and the details are important.) Read More